Pros and cons of the judicial reform concept of Saakashvili
29.07.2020
A concept of the judicial reform, presented today by Mikheil Saakashvili can bring qualitative changes to the judiciary. However, it also imposes a number of threats, which could even worsen the existing problems in this sphere.
Let us briefly explain the key proposals of the concept and their possible consequences.
Liquidation of the High Council of Justice (HCJ), High Qualification Commission of Judges (HQCJ), and State Judicial Administration (SJA). Establishing a single body to oversee the effectiveness of the judiciary.
Pros: The idea of merging the HCJ and the HQCJ has been actively supported by the Venice Commission. This will give the possibility to make judicial governance more accountable and stable. We support the idea of the restructuring of the HCJ and selecting the new composition with the involvement of international experts as it is demanded by the IMF.

Cons: The only way to merge these bodies without amending the Constitution is to join the HQCJ and SJA to the HCJ. However, with the current composition, such reform will even worsen the problems in courts and will pass the authority over the judiciary to the hands of those, who already failed several attempts to implement the judicial reform.

Necessary changes: The HCJ must be cleansed of the untrustworthy members with the involvement of the international experts as it is laid out in the Memorandum of the IFM. Only after this, the other judicial governance bodies can be adjacent to the HCJ.
Liquidation of the system of commercial courts and administrative courts
Pros: Liquidation of the District Administrative Court of Kyiv (DACK), which became the symbol of corruption in the judiciary and establishment of the High Administrative Court are undoubtedly positive initiatives. The key condition in this process is to form the High Administrative Court following the same procedure as with the establishment of the High Anticorruption Court (HACC), i.e., with the involvement of the international experts in selecting judges.

Commercial courts, as the general courts in civil cases, hear the arguments of the private law and therefore their liquidation and merging them with the district court seems quite reasonable. As thus, the faster procedure for hearing the commercial cases can be introduced.

The concept envisages the development of the alternative instruments for conflict resolutions such as arbitration courts, which consequently can reduce the workload from the state courts in reviewing the commercial cases.

Cons: The idea of "liquidating administrative courts" should be implemented with caution. A separate administrative process and the guarantees of protecting individuals before the state, implied by this process must remain untouched.

Necessary changes: It is necessary to envisage the establishment of the High Administrative Court with the participation of international experts in this process.
Holding a referendum regarding the future of the Constitutional Court
Cons: The level of trust to the Constitutional Court (CC) is truly low. The latest decision of the CC, in particular regarding the unconstitutionality of some provision on illegal enrichment and adopting deliberately unlawful decisions along with the information about the CC fixed on the "Vovk records" prove that the CC is certainly not independent.

However, the reason for this problem is not the existing of the CC itself but the process of its formation.

The referendum can have the dangerous long-term consequences to the state like Ukraine with weak democratic institutions. The question of liquidation of the CC is too complicated and comprehensive and therefore, the certain answer to it cannot be found by holding the referendum.

Without additional guarantees during the selecting judges such as engagement of the civil society representatives and independent international experts, the judges of the CC will be politically dependent in any case.

Necessary changes: it is important to deny the idea to hold the referendum and liquidate the CC.

Instead, the new procedure for selecting CC's judges and checking their integrity by a single Selection Commission for all bodies must be established. Two years after the implementation of these conditions, the majority of the CC judges will be independent and professional.

Chair of the Board of the DEJURE Foundation
– The concept presented by Saakashvili contains several decisions, which can better the situation within the judiciary. However, the accent is mainly made on changing the structure of the judiciary and not on the procedures for selecting judges and ensuring their integrity. It does not matter what the structure of the judiciary will be if Pavlo Vovk will control it.

In any case, the concept must be additionally discussed, and the provisions, which potentially could worsen the problems of the judiciary should be excluded. Civil Society is open for the dialogue and calls on to implement the Judicial Reform Roadmap.
DJR
find out more